MAKHSSIAN TRAJAN VAHE v. ISS EASTPOINT PROPERTY MANAGEMENT LTD

HCA 2395/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2395 OF 2016

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J U D G M E N T

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1.  This case concerns a booking for an event at Cyberport.  The plaintiff, Makhssian Trajan Vahe, is representing himself, and his documents are not drafted as crisply as a lawyer might have drafted them.  However, his claim is clear enough.  He alleges that his booking of a venue at Cyberport amounted to a concluded contract for the availability of that venue for an event he was organising between himself and the defendant, ISS Eastpoint Property Management Ltd (“ISS”), which provides facility management services to Cyberport.  Mr Makhssian claims that ISS purported to cancel the booking at short notice, that this amounted to a breach of his contract with ISS, that it left him without a venue for his event and that he has suffered loss and damage under various heads.  Those of his losses which are quantifiable at this stage are said to amount to $10.8m, and there are, as yet, unquantifiable losses as well.

2.  ISS filed a summons under Ord 18 r 19 of the Rules of the High Court in which it applied for the statement of claim to be struck out and for the action to be dismissed (“the strike‑out summons”). Without prejudice to that summons, ISS filed a defence which claimed that the documents in which Mr Makhssian purported to book the venue amounted only to an application to book the venue, that this application had never been accepted by ISS and that no contract had ever been concluded with Mr Makhssian. ISS also filed a second summons in which it applied for a stay of the proceedings until the strike‑out summons had been determined.

3.  Both summonses came before Master Lo on 9 November 2016.  Master Lo ordered that the strike‑out summons be adjourned, with a time estimate of three hours, and gave directions for the filing of evidence in respect of the summons.  Master Lo also ordered that the action be stayed until the strike‑out summons could be heard.  Mr Makhssian filed a notice of appeal against the orders made on both summonses but he subsequently withdrew that appeal.

4.  On 19 December 2016, both parties attended the listing clerk to fix a date for the hearing of the strike‑out summons. They were told that the earliest available date was May or June 2017. Mr Makhssian thought that that was too late, and no date was fixed as the parties could not agree on a suitable date.  The upshot was that Mr Makhssian wrote to Master Lo requesting an earlier hearing date. ISS was content with that.  However, on 3 January 2017, Master Lo responded as follows:

“No reason to have the case heard in priority over the other cases in line. Application for early hearing date be refused.”

In due course, the listing clerk fixed the date for the hearing as 23 June 2017.

5.  Mr Makhssian wants the trial to take place as quickly as possible.  He claims to have little money, and he says that he is looking to the damages to which he claims he is entitled in this action and in another action, to which I shall come in a moment, to restore his fortunes.  That is why he wants the strike‑out summons to be heard soon, and for the stay to be lifted in the meantime, so that the procedural steps in his action against ISS are not delayed.  In order to achieve those objectives, he has filed a further notice of appeal.  I have not seen it but I am told that Mr Makhssian is in fact appealing against Master Lo’s decision not to prioritise the hearing of the strike‑out summons, and the decision to stay the proceedings pending the determination of the strike‑out summons.

6.  A new facet of Mr Makhssian’s dispute with ISS and Cyberport has emerged today.  On 9 January 2017, Mr Makhssian commenced proceedings against Cyberport’s management company, Hong Kong Cyberport Management Company Ltd (“CMC”).  It is not easy to understand his case from the statement of claim endorsed on the writ in that action, but the nub of it is that a temporary places of public entertainment licence (“a TPPE licence”) was needed for the event.  Mr Makhssian claims that ISS applied for one on CMC's instructions, but Mr Makhssian claims that he was not told about that. That was, he says, because the person he was dealing with at ISS told him that a TPPE licence was not needed.  As a result, Mr Makhssian claims that he was not able to liaise with the police, and without the input which he could have given the police to persuade them that it was appropriate for a TPPE licence to be granted, it was refused.  He has not said so in so many words, but presumably he claims that that was one of the reasons why ISS purported to cancel the booking.

7.  Mr Makhssian wants both proceedings consolidated, and since CMC's solicitors have, he says, intimated to him that CMC proposes to strike out the statement of claim in the action against CMC, Mr Makhssian wants both proposed summonses — ie the proposed summons to consolidate both proceedings and the proposed summons to strike out the statement of claim against CMC — to be heard at the same time.  So another reason why he wants the stay of the proceedings against ISS to be lifted is so that he can pursue his action against CMC.  The answer to that is that the stay relates only to his action against ISS.  There is nothing to prevent his action against CMC continuing until such time as the actions may be consolidated.

8.  In any event, there is no basis to lift the stay.  If the strike‑out summons is successful, all the work which will have been done on completing the necessary procedural steps in the action against ISS between now and when the strike‑out summons is determined will have been wasted.  It is better for the trial of the action to be slightly delayed than for work to have been done unnecessarily in the meantime.  In any event, having abandoned his previous appeal against the order for a stay, it would not be right for the court to entertain a similar appeal again.

9.  Different considerations apply to Master Lo’s decision not to prioritise the hearing of the strike‑out summons.  I can see where Master Lo was coming from. The only remedy Mr Makhssian seeks in that action is damages, and there has been no interlocutory relief, the continuance of which is dependent on the outcome of the action.  In those circumstances, it is usually inappropriate to allow the hearing of an interlocutory summons to be given priority over the summonses of other litigants.  But this is not a case of a plaintiff who has the resources to cope with a long wait between now and the trial of the action.  If Mr Makhssian’s claim about his lack of funds is true, and I have no reason to doubt it, he has just as much of a need for his action against ISS to be heard sooner rather than later as, say, a defendant who is restrained by injunction until the trial from doing that which he otherwise would have done.

10.  Moreover, although all four limbs of Ord 18 r 19(1) are relied upon by ISS in support of its strike‑out summons, there are really only two points being taken.  One is that the claim is an abuse of the court’s process because it is bound to fail.  That will involve looking only at a limited number of documents.  The other is that some of the relief claimed is frivolous because some of the heads of loss and damage are not recognised by law.  That will not take long to address either.  In my opinion, an estimate of two hours for the hearing of ISS’s strike‑out summons would have been a more accurate estimate.  But for the new proceedings commenced against CMC, I might well therefore have been persuaded to allow the appeal against the order made by Master Lo on 3 January, and to have ordered an expedited hearing of the strike‑out summons with a time estimate of two hours. 

11.  However, the commencement of proceedings against CMC has, in my opinion, changed all that.  If, as Mr Makhssian thinks is likely, CMC will issue a summons for the statement of claim in the new action to be struck out and the action dismissed, it makes sense for that summons to be heard at the same time as the strike‑out summons in the action against ISS, whether or not the two actions have been formally consolidated in the meantime.  An estimate of three hours for the hearing of both summonses may well be right, and since the summons to strike out the new statement of claim has not yet been issued, and it will take some time for the evidence for that summons to be filed, it will take at least some time before that summons will be ready to be heard.  I cannot estimate precisely when the parties will be ready for that summons to be heard, but in my opinion, it is premature to fix an early date for a hearing of both the strike‑out summonses when the strike‑out summons in the action against CMC has not yet even been issued.

12.  In the circumstances, the date currently fixed for the hearing of ISS’s strike‑out summons should stand, and it follows that both appeals should be dismissed.

(Submission on costs)

13.  I make no order as to costs.